Grundlehner v. Dangler

• Citation: 143 A.2d 192,51 N.J.Super. 53
• Decision Date: 27 June 1958
• Docket Number: No. A--14,A--14
• Parties: Elise L. GRUNDLEHNER et al., Plaintiffs-Appellants, v. J. Henry DANGLER et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 53

51 N.J.Super. 53

143 A.2d 192

Elise L. GRUNDLEHNER et al., Plaintiffs-Appellants, v. J. Henry DANGLER et al., Defendants-Respondents.

No. A--14.

Superior Court of New Jersey Appellate Division.

Argued March 31, 1958.

Decided June 27, 1958.

William C. Nowels, Asbury Park, argued the cause for appellants (Mirne & Nowels, Asbury Park, attorneys).

Lawrence A. Carton, Jr., Atlantic Highlands, argued the cause for respondents (Roberts, Pillsbury & Carton, Atlantic Highlands, attorneys).

Before Judges PRICE, HANEMAN and SCHETTINO.

The opinion of the court was delivered by

HANEMAN, J.A.D.

The appeal is from a dismissal by the trial court of a complaint which contested the validity of the action of (1) the board of adjustment of the Borough of Belmar in recommending, and (2) the board of commissioners of said borough in approving a variance from the borough's zoning ordinance.

The facts are:

Defendant Dangler is the owner of property at the corner of Eighth Avenue and South Lake Drive in the Borough of Belmar. That location is within 200 feet of property owned by plaintiffs. Dangler has there conducted a funeral home for some years prior to 1953. In that year the borough amended its zoning ordinance and thereby placed the Dangler property in the A--1 Residential Zone, which zone limits buildings to single one-family dwellings. Since the date of the amendment referred to, Dangler has been operating his funeral home as a nonconforming use.

On February 14, 1957 Dangler applied to the building inspector of the borough for a permit to erect an addition to his building. Under the plan of construction Dangler proposed to enclose an open side porch which is attached to the building, and to integrate the enclosure as a part of the building proper. The dimensions of the open porch are 10 feet in width and 26 feet in length. He intended to devote the enclosed addition to his business, and planned to include therein a powder room, office, elevator and a smoking room. At that time Dangler also applied for a permit to extend a garage in the rear of the property.

The building inspector denied Dangler's application. He, Dangler, then applied to the board of adjustment for a variance. Upon a recommendation from the board of adjustment, the board of commissioners, on April 9, 1957, adopted the following resolution:

'Whereas, the Board of Commissioners of the Borough of Belmar have received a recommendation from the Board of Adjustment that permission be granted to J. Henry Dangler to erect an addition to the funeral home and garage located at Eighth Avenue and South Lake Drive, Belmar, New Jersey; and

'Whereas, the Board of Commissioners have considered the testimony and evidence given before the Board of Adjustment and having also read the memorandums of law submitted by the Attorneys for the applicant and the objectors, and further, having viewed the premises in question;

'The Board of Commissioners do make the following findings:

'1. The premises in question have been utilized as a funeral home for a great many years and its use as such antedates the 1953 Zoning Ordinance of the Borough.

'2. The granting of the addition to the funeral home itself by squaring off the building and adding elevator and other facilities will correct a peculiar and exceptional practical difficulty and hardship to the owner of the premises and the granting of this addition would be without substantial detriment to the public good and would not substantially impair the intent and purpose of the zoning plan and the zoning ordinance. This condition is not true insofar as the erection of an additional garage to the garages already existing on the premises and the denial of an additional garage will not work any undue hardship or difficulty to the owner.

'Now, therefore, be it resolved by the Board of Commissioners of the Borough of Belmar as follows:

'1. The recommendation of the Board of Adjustment for a variance to J. Henry Dangler, 8th Avenue and South Lake Drive, Belmar to erect an addition to the funeral home building located at said address is hereby approved and confirmed and the variance is hereby granted as to the building only.

'2. The recommendation of the Board of Adjustment as to the addition to the garage is not approved and the variance to that portion is hereby denied.'

Plaintiff, by an action in lieu of prerogative writ, contested this municipal action insofar as it granted Dangler a variance for the purpose of constructing an extension to the building proper. The parties having stipulated the facts at the pretrial the court granted, a motion by Dangler to dismiss the complaint.

The trial court stated, in part, in its conclusions:

'I am of the opinion that in this case the variance granted defendant Dangler, (the variance for the building of a garage was denied), contemplates and authorizes no enlargement of the nonconforming use; that it does contemplate and authorize a small, rather than a substantial enlargement of the Dangler Huneral Home building, but that the changes in the Dangler building authorized are only for the purpose of modernizing the existing facilities and are merely incidental to the operation of the existing nonconforming use; that the relief granted defendant Dangler will not be detrimental to the public good and will not substantially impair the intent and purpose of the zone plan and ordinance; and that the record before me exhibits no arbitrary or capricious action by the local authorities that could be called an abuse of discretion; and that there is no basis in this case for the court to interfere with the discretionary action of the governing body of the defendant Borough in having granted the variance requested.'

Plaintiff appeals from the action of the trial court upon the grounds that (1) the structural addition constitutes an enlargement of a non-conforming use and the granting of the variance is therefore void, and (2) the findings of the governing body are inadequate.

Dangler, on the other hand, urges:

'On the contrary, the Courts of this State and elsewhere have long recognized the difference between an increase in the use itself and a change or alteration in a building or structure (as in the present case), which involves no increase in that use. The former is not sanctioned by the statute. The latter depends upon whether the alteration is substantial in character and the circumstances of the particular case involved.'

R.S. 40:55--48, N.J.S.A., provides, Inter alia, that a non-conforming structure existing at the time of the passage of a zoning ordinance may be continued on the lot. Section 1401 of the Belmar ordinance provides...